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Abstract

In the last few years, the assessment of non-horizontal mergers in the European Union (“EU”) has evolved considerably. There is now a consistent body of jurisprudence and administrative decisions on the assessment of vertical and conglomerate concentrations. The goal pursued is consumer welfare; the potential benefits of non-horizontal mergers are recognized and sound economic thinking is relied upon in identifying those instances where such mergers could lead to anti-competitive effects. Several developments have significantly contributed to this evolution. Two judgments of the European Courts have necessarily to be mentioned first: in 2004 the European Court of Justice (“ECJ”) established general principles on the assessment of non-horizontal mergers in the Commission v. Tetra Laval BV (“Tetra/Sidel”) judgment, which were completed and made operational by the Court of First Instance (“CFI”) one year later in its judgment in General Electric Co. v. Commission (“GE/Honeywell”). Second, an amended Merger Regulation entered into force in May 2004. This introduction of a new test, which no longer requires proof that a merger will lead to dominance before allowing intervention to prevent consumer harm, is particularly relevant for non-horizontal mergers. Third, the European Commission (“the Commission”), in November 2007, adopted guidelines on the assessment on non-horizontal mergers which, within the legal framework set up by the Courts, attempt to develop an economically sound approach for the analysis of vertical and conglomerate concentrations. Finally, during this period, the Commission has dealt with several vertical and conglomerate mergers in its enforcement decisions, which have allowed it to already apply and refine its policy in a number of individual situations. This Article describes in detail and comments on all of these developments, both from a legal and from a policy perspective.

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